Douglass v. City Council of Montgomery

• Decision Date: 05 November 1898
• Citation: 118 Ala. 599,24 So. 745
• Parties: DOUGLASS v. CITY COUNCIL OF MONTGOMERY ET AL.
• Court: Alabama Supreme Court

24 So. 745

118 Ala. 599

DOUGLASS v. CITY COUNCIL OF MONTGOMERY ET AL.

Supreme Court of Alabama

November 5, 1898

Appeal from chancery court, Montgomery county; Jere N. Williams Chancellor.

Bill by James Douglass against the city council of Montgomery and others. From a decree dismissing the bill, complainant appeals. Reversed.

Coleman J., dissenting.

The appellant, James Douglass, a resident citizen and taxpayer of Montgomery, Ala., filed his bill to have declared null and void two ordinances adopted by city council of Montgomery one granting to the Belt Line Railway Company right to lay a railroad track across "Gilmer Park," and the other granting said park to the Alabama Midland Railway Company and to enjoin said companies from exercising the rights thereby sought to be conferred.

Complainant claimed the right to maintain his bill because (1) he was a resident citizen and taxpayer of Montgomery, and (2) he had by the adoption of said ordinance and would by the exercise of the rights conferred thereby suffer special irreparable injury. He alleged also substantially that "Gilmer Park" had been purchased by the city council of Montgomery in 1850 to be used only as a street or common, if otherwise to revert to the heirs of its grantor; that it had lain out as an open common until 1877 when it was by formal ordinance dedicated as a public park or pleasure ground and then inclosed and improved, in which state it remained until seized by said Alabama Midland Railway Company on January 20, 1897, claiming right thereto under said ordinances. The other facts of the case are sufficiently stated in the opinion.

The bill was filed on March 8, 1897, and an injunction was issued on that date on the fiat of the judge of the city court. The city council of Montgomery, the Alabama Midland Railway Company and the Belt Line Railway Company are made parties defendant.

On the submission of the cause on the defendants' motions to dissolve the injunction and to dismiss the bill for the want of equity, the chancellor rendered a decree ordering the injunction dissolved and the bill dismissed for the want of equity. From this decree the complainant appeals, and assigns the rendition thereof as error.

Fred S. Ball and W. S. Thorington, for appellant.

A. A. Wiley and Chas. Wilkinson, for appellees.

HARALSON J.

It is stated in 15 Am. & Eng. Enc. Law, 1064, that "municipal corporations hold the title to streets, alleys, public squares, wharves, etc., in trust for the public; and upon principle, such trust property can no more be disposed of by the corporation than can any other trust property held by an individual." In the note to the text, many decisions are cited in support of the principle stated. So, it has been held, that the trustees of a town have no authority to convey streets, alleys or public grounds, and such conveyances are absolutely void. Giltner v. Trustees, 7 B. Mon. 680; Morris v. Improvement Co., 38 N. J. Eq. 304, and authorities there cited; Harn v. Common Council, 100 Ala. 200, 14 So. 9; Webb v. City of Demopolis, 95 Ala. 116, 13 So. 289. In the case last cited, which had reference to a public street,-over which, in general, the city has greater authority in the matter of the direction of the uses to which it may be subjected than it has over a public park,-it was said: "The city never had any alienable title to or right in the street. It could never have granted it or any part of it away, for any purpose whatever. Having no power of direct alienation, it could not pass title indirectly by submitting for the statutory period to private possession, claim and use."

Judge Dillon states the rule to be, that "municipal corporations possess the incidental and implied right to alienate or dispose of the property, real or personal, of the corporation, of a private nature, unless restrained by charter or statute; they cannot of course, dispose of property of a public nature, in violation of the trusts upon which it is held, and they cannot, except under valid legislative authority, dispose of the public squares, streets, or commons." 2 Dill. Mun. Corp. §§ 575, 650, and numerous authorities cited. Another phase of the rule should be added in this connection, as we find it stated in the Encyclopedia: "When lands, held by a municipality for public use, are not subject to any special trust, the legislature may authorize a municipal corporation to sell and dispose of the same or to apply them to uses different from those to which they are devoted, but in the absence of such authority, the municipality has no implied power to do so. *** If, however, the lands have been dedicated by private individuals for a public park or square, the legislature has no authority to authorize any diversion from the uses to which they were originally dedicated." 17 Am. & Eng. Enc. Law, 417, and authorities.

In this case, on the 17th of September, 1850, F. M. Gilmer and his wife, in consideration of $300 paid to said Gilmer, by the city council of Montgomery, sold and conveyed to said city council a piece of land in said city, the subject of this suit, which is particularly described in the conveyance, and is called "Gilmer Park." The conveyance contained the condition, "said lands to be used only as a common or street; if otherwise, to revert to me or my heirs." The park, nor any part of it, has ever been devoted to street purposes; but, on the 19th February, 1877, as alleged, the city council of Montgomery, by ordinance, set apart and dedicated to the public use, as a public park or pleasure ground, the lands conveyed to them by said Gilmer, known as "Gilmer Park," which ordinance is still of force. It is further alleged, that shortly after the adoption of said ordinance, the said city council caused the said Gilmer Park to be inclosed with a fence, and caused a number of trees to be planted on or about it, and from that time down to about the 20th January, 1897, the said park remained inclosed, and was held and treated and used as a park, for the use and benefit of the inhabitants of the city of Montgomery, etc.

The said F. M. Gilmer died, leaving a widow and two children. The defendant, the Alabama Midland Railway Company, purchased from his widow and these two children, for the recited consideration of $300, all their right, title, interest and reversion in and to the lands known as the "Gilmer Park." This company, according to the allegations of the bill, and as appears to be true, for the purpose of promoting its terminal facilities and its connections with the Mobile & Ohio Railroad Company, induced the city council of Montgomery by ordinance to grant to the Belt Line Railway Company-a local company in the city-the right to put down and operate an additional main line track through Gilmer Park, etc.; and, also, to adopt another ordinance at the same time-both ordinances having been prepared, as alleged, by the counsel of the Alabama Midland Railway Company, and introduced, adopted and approved on the same days. Manifestly, these ordinances constitute but one transaction, designed for the same purpose. The two might as well have been adopted as one. The latter ordinance, after reciting the sale by Gilmer of said park to the city; the purposes of its conveyance; the condition of its reversion to his heirs; the purchase of the reversionary interest of the heirs of Gilmer by said Alabama Midland Railway Company, contains their further recital, by way of preamble: "And whereas, the exigencies of public business and the necessity of better transportation facilities have induced the city council of Montgomery, to grant to the Belt Line Railway Company, the right and privilege of laying down a railway track through, over and across said triangular park, otherwise called the 'Gilmer Park,' and to run and operate a dummy steam engine and cars thereon, thereby destroying the said parcel of land as a public park, and thereby causing a reversion of said realty to its rightful owners; Now, therefore, and for the purpose of abandoning in some public and authoritative manner, the use of said land as a public park, be it therefore ordained by the city council of Montgomery, that said city council of Montgomery hereby abandons and discontinues the use of said ground or parcel of land as a park and for all other purposes; and hereby confirms, as far as the city council of Montgomery is able to do, the right, title, claim and interest of the said Alabama Midland Railway Company, its successors and assigns therein and thereunto forever. Adopted Jan. 13, 1897. Approved Jan. 18, 1897."

There is no disguise about these ordinances. The city authorizes openly abandoned whatever trust obligation had been imposed on them by the deed of Gilmer to the park, and their own act of dedication by said ordinance of the 19th of February 1877, by which act of abandonment, as was supposed, the title would revert to the Gilmer heirs, whose reversionary interest, if they had any, the said Midland Railway Company had bought up. The effort was to invest the railroad company with a title to the property, by means of this violation of the trust of the city. The city authorities were induced into the scheme, by what, it is stated, appeared to them to be the necessity of better transportation facilities and the exigencies of the public business We must acquit all engaged in this scheme, of any intentional fraud upon the rights of the public; the one side, in procuring, and the other in yielding to, an abandonment of a public trust for another supposed public benefit. But, yielding to them in good and honest intention, what was accomplished, according to the authorities, was an illegal transaction and a fraud in law. The condition inserted in his deed by Gilmer, for a reversion of...